From — Missouri Lawyers Weekly

April 14, 1998 (Front Page)

An older sister who developed a ‘bonding familial relationship” through years of caring for her two young siblings has defeated the children’s father for sole legal custody, in a ruling by the St. Louis City Circuit Court.

Even though the father was “not unfit,” the sister had become an “equitable parent” and not to award her legal custody would cause “actual detriment” to the child.

Circuit Judge Thomas J. Frawley, who entered the order, acknowledged that no Missouri decision has adopted the doctrine of equitable parent, but he thinks it is essential for resolving modern custody disputes.

“The nuclear family simply does not exist in many cases today,” he said.

“We have got to come up with a procedure for people who are not blood-related to present their case in court, so that children are not taken away from their stepparents and brothers and sisters”

Clayton attorney Allan F. Stewart agreed. “Changes in society force us to recognize different situations today. It does not make sense or serve any good purpose that all custody cases are pigeonholed to depend on who is the biological parent,” he said. “The problem is finding a clear body of law on when a person is an equitable parent.”

‘Equitable Parent’ Defined

According to Frawley’s order an “equitable parent” is one who provides for the physical, emotional and social needs of a child and demonstrates that:

  • h she had physical custody for an extended period;
  • h her motive in seeking parental status is her genuine concern for the child; and
  • h her relationship with the child began with the consent of the child’s legal parent.

“The Court of Appeals may be concerned that this opens the door to massive litigation, but it does not. You will have to prove certain things,” said the winning attorney, Marie A. Kenyon of St. Louis. Kenyon said she has other cases pending in which she plans to assert the doctrine of equitable parent.

“I like the way Judge Frawley sets it up,” said attorney Leigh Joy Carson who won the first Missouri case finding equitable parentage. “He gives you a good, clear road map of what you have to show.”

Actual Detriment

According to Frawley’s order, to win legal custody, an equitable parent must show more than that the “best interests of the child” compel an award of custody; there must be an “actual detriment to the child” if custody is not awarded to her.

But it is not necessary to show that the natural parent is unwilling, unable or unfit to assume the duties of caring for the child, as would be required in seeking appointment as the child’s legal guardian.

Judge Frawley entered his order in In Re: The Matter Of Cotton, et al., MLW No. 19449, on March 12.

The case is the second in which Frawley has invoked the doctrine of “equitable parent.” In the first case, Frawley ruled that a lesbian was the equitable parent of her sometime lover’s two-year-old child.